Law: Evidence Act (I of 1872)

Section: 101, 102, 103

(a) Evidence Act (I of 1872) Ss. 101, 102 & 103-Burden of proof, general rule relating to, con tained in Ss. 101, 102 & 103-Subject to modification by presumptions, admissions and estoppels-Rules contained in Ss. 101, 102 & 103 not absolute or imperative-Parties entering into contract of insurance can modify by express words in contract that the onus of proof of any particular fact or its non-existence would be on insured. A clause in agreement or policy of insurance laid down that " . . . . . the burden of proving that such loss or damage is covered (by terms of contract) shall be upon the insured". It was contended that such a clause in the policy of insurance was void and must be left out of consideration being violative of the law contained in sections 101 to 103 of the Evidence Act, 1872. Held : Sections 101 to 103 of the Evidence Act, no doubt lay down the "general rules", regulating the burden of proof, but the law as to burden of proof contained in these rules is subject to or is modified by presumptions admissions and estoppels. Admissions as used in the Civil Procedure Code operate as a waiver, relieving the other side from (he necessity of tendering evidence to prove the fact thus admitted. An admission raises a presumption that is to be accepted as true until the contrary is shown. The admissions therefore, shift the onus and the burden of proving the contrary then lies on the other party. It cannot therefore be said that the rules as to burden of proof are absolute and imperative and must operate whether the parties want them or not. If in an agreement it is accepted that the burden of any alleged fact would be on the insured there is nothing in law to prevent such condition in the agreement from being effective. Such a condition cannot be brushed aside as invalid, inoperative or redundant. The general rules as to burden of proof in the Evidence Act, can be modified by express words in a contract, including a Policy of insurance. Therefore, if the insured has accepted the onus of proof regarding any exception, there is, nothing illegal about it, and such a clause in the agreement can be given effect to as a valid…